79 W. Va. 303 | W. Va. | 1916
Lead Opinion
At the general election held in Wyoming County, November 7, 1916, Herbert W. Sanders and W. B. Belcher were opposing candidates for sheriff of the.county, and voted for as such. There were several voting precincts in the county, at which the election was held. The county court of said county met as a canvassing board on Monday, the 13th of November, 1916, as required by law, for the purpose of ascertaining and declaring the result of the election. When the ballots, poll books, tally sheets, and certificates from the several voting precincts of the county were laid before the board for examination, it was discovered that one of these boxes containing such papers was missing. The clerk of the county court, who was thé legal custodian of these boxes, explained that the box and election returns from Precinct No. 2, in
It is averred that the board of canvassers refused to hear said evidence and refused to make any inquiry whatsoever into the result of said election held at said precinct No. 2. And it is further alleged that the board of canvassers hold that “it was their duty to close the canvass of said election without considering, or attempting to ascertain, the result of said election at said precinct No. 2. ’ ’
The petitioner, Herbert W. Sanders, asks for ■ a writ of mandamus to compel the board of canvassers “to reinstate, hear and consider the evidence herein set forth, as well as
The only question presented for our consideration and determination is whether, in the absence of the ballots, certificates of election- and poll books, it was the duty of the canvassing board to hear and consider other evidence in ascertaining the result of the election.
The ballot is the written memorándum of the voter’s intention. The certificate of election is the declaration of the result of the election as ascertained by the commissioners from the ballots. Hence, the ballots, when identified as the ones cast by the voters, are the best evidence, and when they can be obtained and are in the condition they were in when deposited by the voter, they alone must be used in ascertaining the result of the election. In declaring the result from the ballots the canvassing board would have the same evidence of the voters’ intention and act that the commissioners had when the certificates were made by the commissioners at the close of the election, but if the ballots have been destroyed after the certificates are made up, or for any reason can not be produced, or if being produced, it appears that they have been tampered with since the certificates were made up and are so altered as not to show the voters ’ intention, then resort must be had to some other means by which to ascertain the result. Next to an inspection of the ballots when 'produced and identified as the ones cast by the voters, the certificates of the result of the election made up from these ballots by the commissioners, are most reliable and should be considered by the board of canvassers, and the result of the election may be safely ascertained from such certificates. Williamson v. Musick, 60 W. Va., at page 65; McKinzie v. Hatfield, Mayor, and others, 87 S. E. 879, not yet officially reported.
But in the case at bar the board of canvassers have neither the ballots nor the certificates. The ballots, certificates, and tally sheets have all been stolen from the custody of the
In the case at bar the ballots, certificates, tally sheets, and other memoranda made by the election officers and returned to the clerk of the county court, were stolen. No fault is imputed to the election officers or to the clerk of the county court. The petitioner asked leave of the board of canvassers to prove the result of the election by officers of the election who were present and participated in the election and aided in ascertaining the result of the ballots and in certifying the result. Surely this may be done in a proper case. The certificates of the election, if present, in the absence of the ballots, could be used as evidence, and in the absence of both
Counsel for the board of canvassers contend that the board can not be compelled by mandamus to canvass the vote under the circumstances. We can not endorse these views of counsel. As we have already said, the board of canvassers is charged with the duty of ascertaining and declaring the result of the election, and if it fails to perform this duty, the statute provides how such officers may be compelled to perform their duties. Section 98a (16), chapter 3 of the Code, provides: “Any and all duties required of any person or officer by this act, may be enforced and compelled to be performed by such person or officer or court by writ of mandamus or other proper legal proceeding issued by the circuit court of said county, or the supreme court of appeals. ’ ’ This statute “gives the writ of mandamus more scope than at common-law, rendering it a process to control them (the officers) as to all actions ministerial or judicial.” Marcum v. Ballot Commissioners, 42 W. Va. 263. Stanton v. Town of Wolmesdorff, 55 W. Va. 601; Daniel v. Simms, 49 W. Va. 554.
The board of canvassers can not determine the qualifications of voters, or any such question. They simply ascertain and declare results. Whether these results are brought about by illegal voting or by other means, is no concern of the board of canvassers. Other means are provided by law to determine such controversies. Where it is within the power of the board of canvassers to ascertain the result of the elec
We are of opinion that the petition on its face nndenied, shows sufficient ground for mandamus, and will issue the peremptory writ as prayed for.
Peremptory writ ordered.
Dissenting Opinion
(dissenting):
If the principles enunciated in the majority opinion be correct, and the county court sitting as a board of canvassers can hear evidence and from it determine the result of an election, they open wide the door for the perpetration of fraud against the will of the voters, and encourage evil designed persons to attempt to create just such or similar conditions as appear in this case. To construe the election statute to permit a ministerial body, one not empowered to exercise judicial functions, by proof, whether credible or not, to substitute the memoranda or recollection of witnesses in lieu of the mode prescribed by law, as I interpret it, is indeed very questionable. For just such a condition an adequate and available remedy exists, one in nature judicial, where there are requisite legal formalities, whereby a candidate, upon the service of a notice specifying the particulars with reference to which he claims the right to an office, may have a competent investigation of all the matters so specified, whether disclosed in the returns canvassed or not, and in this manner ascertain the true results of such an election as between rival claimants; either of. whom, if aggrieved, may have a review by superior tribunals upon writs of error. With knowledge of this ample procedure in its possession, I can not consent to the supposition that the legislature intended to enlarge the restricted powers by statute committed to the board of canvassers, so as to permit it to perform functions assigned to tribunals established to determine contests between those who claim to have been elected by the voters to fill any public office. There .appears nowhere any statutory provision that I have been able to find that can in my opinion be interpreted to authorize any such radical departure from the procedure legally established to test the
Believing the conclusions' expressed in the majority opinion are not in accord with essential statutory requirements relating to the ascertainment of election returns, I am constrained to dissent.